Brendan Eich, Free Speech, and the California Labor Code

Ilya Somin over at the Volokh Conspiracy has an interesting post about the implications of the Brendan Eich/Mozilla affair. For those of us in California, of course, free speech protections in the workplace are nothing new. California law has long prohibited employers from punishing employees for expressing their political views. For example, Labor Code sections 1101 and 1102 expressly prohibit employers from enforcing any policy that prevents employees from participating in politics, or compels them to toe any “particular course or line of political action or political activity.” And Labor Code 96(k) gives the California Division of Labor Standards Enforcement the power to adjudicate claims by an employee that he or she has been discharged “for lawful conduct occurring during nonworking hours away from the employer’s premises.” While there are limits to these off-duty conduct” protections when it comes to non-political speech or conduct, the Eich affair comes nowhere close to testing them. It’s pretty clear that an employer in California may not discipline or fire an employee for his or her decision to contribute to a political cause or candidate.

Which raises an interesting question: had Brendan Eich—who appears to be a California resident—not chosen to resign in the face of the firestorm caused by disclosure of his financial contributions to the Proposition 8 campaign, could Mozilla have lawfully fired him for those contributions? The answer–at least under California law–is likely no. Although the fallout from his contributions was causing serious harm to Mozilla’s brand, courts have generally rejected “customer preference” as a defense to an employment claim. Private employers in California do not have the legal right to fire an employee because of the political views he expresses outside the workplace may be unpopular or even damaging to the company.

Of course, self-preservation is a strong impulse, and no one should be surprised if an employer facing ruin because of a senior executive’s political views chooses to accept the legal repercussions of that wrongful dismissal over the collapse of its business. But, at least in California, that employee will have recourse.